Sharpe v. Miller, 47 So. 701

Sharpe v. Miller

47 So. 701 | Ala. | 1908

DOWDELL, J.

— The relief, if any, to which a complainant may be entitled, must he determined from the facts stated in the bill. A party may be sometimes mistaken in his special prayer for relief on the facts stated, and yet obtain relief under his general prayer; hence the value and importance of a general prayer. —McDonnell v. Finch, 131 Ala. 85-90, 31 South. 594.

There is no repugnancy between the original hill and the amendment allowed in the case before ns; nor was there any departure in the amendment from the original hill. On the facts stated in the original bill, the relief, if any, to which the complainant was entitled, was the right of redemption, and not the relief asked ia his special prayer. The amendment, in its averments as to facts, made no change in the legal aspects of the case as presented by the original bill, and the amendment of the special prayer for relief Avas permissible and proper. Where a plea.der has in his prayer mistaken the relief to Avhich he is entitled on the facts stated in his bill, the amendment of his prayer conformable to the facts does not constitute a repugnancy. —Ingraham v. Foster, 31 Ala. 123; Berry v. Tenn. & Coosa, Railroad Co., 134 Ala. 618, 33 South. 8; Mayfield’s Digest p. 341.

*304The debt of R. L. Simmons to Julia Simmons was a personal asset, the title to which upon the death of Julia Simmons, vested in the administrator, her personal representative, and the mortgage given to secure this debt likewise passed to the personal representative. It was by virtue of this mortgage that the right of redemption here sought to be enforced, arose. Clearly the administrator had the right, as it was his duty, to avail himself of the remedy afforded by the mortgage to collect the debt due the estate, and to this end, if need be, to remove a prior incumberance. on the mortgaged property. We think, under the facts of this case, there can be no doubt of the right of the administrator to redeem. —Griffith v. Rudisill, 141 Ala. 200, 37 South. 83.

The chancellor properly overruled the demurrer to the bill as amended, and his decree will be affirmed.

Affirmed.

Tyson, C. J., and Anderson and McClellan, JJ.» concur.